A woman is suing Hooters for employment discrimination based on disability status for allegedly being forced out of her job as a waitress at the racy restaurants after she underwent cancer surgery, lost her hair and had a large scar on her head.
Hooters reportedly wanted her to wear a wig. The woman tried, but it hurt her scar, which was still healing. She says her hours were then cut back until she eventually was forced to quit.
Imagine a place like Hooters being so superficial.
Hooters, for anyone unaware, is a chain-restaurant where the waitresses wear very skimpy clothes in order to show off their usually-large breasts, which are known as “hooters” in American slang.
The St. Louis Post Dispatch does a good job walking through the legal issues here (media doesn’t always do so well on that). But in a nutshell, disability rights laws protect you from discrimination based on your disability or your perceived disability (meaning, someone refuses to hire you because they think you have AIDS, even if you don’t). In this case, allegedly pushing a waitress out because her cancer has made her less attractive (in the management’s eyes), is a tough sell. As the paper points out, the plaintiff needs to be able to prove that she was able to do her job. But the question arises – or it’s one that Hooters will try to sell to the court – as to whether being a “hot chick” is essential to doing your job at Hooters.
While, sure, being a hot woman is essential working at HootersI’m not sure how a judge rules in favor of Hooters on this one, lest every business start alleging that its “public face” is important, and thus they discriminate against people with disabilities, and even minorities and women, because it’s “what the customers want.”
Now granted, we’re dealing with Hooters here. But as FindLaw explains, it’s really not enough to simply say “our customers like pretty girls.”
Title VII prohibits employers from discriminating in employment decisions based on gender, race, national origin, religion or age. Many states make it illegal to discriminate based on sexual orientation or transgender status.
Title VII also, however, allows for discrimination based on protected characteristics (except race), when that characteristic is what is called a “Bona Fide Occupational Qualification” (BFOQ). To be a BFOQ, being a member of that group is essential to the job.
To use this exception to the rule against discrimination, an employer must be able to prove that no member outside the desired group could perform the job. A simple example would be a job for a women’s bathroom attendant.
Employers can, and often do, however, go too far. For example, airlines have been prohibited from hiring only female flight attendants because men too can perform the basic function of the job.
Hooters went on to settle that other case. So it’s still not entirely clear what would happen if they hadn’t settled. But I’m not sure what the difference is between saying Hooters’ customers find cancer scars disturbing and saying every restaurant customer finds cancer scars disturbing. Cancer is disturbing. And too bad. You don’t get to end someone’s career over it. That’s kind of the whole point of disability laws.
I’m not entirely convinced that it should be legal for Hooters to exist at all. But to the degree we want to make an exception for quasi-sexual jobs like Hooters, I think you have a much harder sell saying that we should now start making exceptions to disability laws as well. At some point, a judge is going to say “enough.” How much you want to bet Hooters settles this one too, rather than risk a defeat that could impact its restaurants nationwide?